Opinion
873 KA 15–00953
09-28-2018
The PEOPLE of the State of New York, Respondent, v. Richard WALCOTT, Defendant–Appellant.
KATHLEEN A. KUGLER, CONFLICT DEFENDER, LOCKPORT (EDWARD P. PERLMAN OF COUNSEL), FOR DEFENDANT–APPELLANT. CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
KATHLEEN A. KUGLER, CONFLICT DEFENDER, LOCKPORT (EDWARD P. PERLMAN OF COUNSEL), FOR DEFENDANT–APPELLANT.
CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, LINDLEY, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of grand larceny in the fourth degree ( Penal Law § 155.30 [5 ] ), defendant contends that County Court abused its discretion in denying his motion to withdraw his guilty plea based upon his claim of innocence. Although that contention survives defendant's valid waiver of the right to appeal (see People v. Colon, 122 A.D.3d 1309, 1309, 995 N.Y.S.2d 429 [4th Dept. 2014], lv denied 25 N.Y.3d 1200, 16 N.Y.S.3d 522, 37 N.E.3d 1165 [2015] ), we conclude that it lacks merit. " ‘A defendant is not entitled to withdraw his guilty plea based on a subsequent unsupported claim of innocence[ ] where[, as here,] the guilty plea was voluntarily made with the advice of counsel following an appraisal of all the relevant factors’ " ( People v. Fisher, 28 N.Y.3d 717, 726, 49 N.Y.S.3d 344, 71 N.E.3d 932 [2017] ). "The assertion of innocence by defendant in support of the motion is belied by his admission of guilt during the plea colloquy" ( People v. Conde, 34 A.D.3d 1347, 1347, 825 N.Y.S.2d 605 [4th Dept. 2006] ; see People v. Newkirk, 133 A.D.3d 1364, 1364, 20 N.Y.S.3d 507 [4th Dept. 2015], lv denied 26 N.Y.3d 1148, 32 N.Y.S.3d 62, 51 N.E.3d 573 [2016] ; People v. Williams, 103 A.D.3d 1128, 1129, 958 N.Y.S.2d 826 [4th Dept. 2013], lv denied 21 N.Y.3d 915, 966 N.Y.S.2d 366, 988 N.E.2d 895 [2013] ; see generally People v. Haffiz, 19 N.Y.3d 883, 884–885, 951 N.Y.S.2d 690, 976 N.E.2d 216 [2012] ).